Defendant

Defendant

Kim Jong-tae

Attorney Kim Jong-ho (Korean)

Suwon District Court Decision 2005Gohap52 Decided February 10, 2006

The judgment below is reversed.

A defendant shall be punished by imprisonment for not less than three years and six months.

158 days of detention before pronouncement of the judgment below shall be included in the above sentence.

1. Summary of grounds for appeal;

(a) misunderstanding of facts and mental disorder;

At the time of the instant case, the Defendant opened the door of the Defendant’s house at ordinary times, and found the house of the Defendant’s house, which led to the Defendant’s house-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face (hereinafter “the Defendant house-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face (hereinafter “the Defendant house-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-face-to-

B. Unreasonable sentencing

The sentence of the court below (five years of imprisonment) is too unreasonable in light of the various sentencing conditions of this case, such as the agreement with the victim.

2. Determination

A. Determination of mistake and mental or physical disorder among the grounds for appeal by the defendant

(1) Error of fact

In light of the fact that the defendant was released from 13th floor in order to go up to the defendant's office (1303), and he did not enter the house in which another person's money and valuables were stolen, and that he was cut up to the upper floor through stairs, and that he returned 1403, 1404, and 1503, but he stated that he opened and intruded the door of 1502 that he did not locking the masts after being set up (187, 188, 255, 256 of investigation record) after being set up by the investigation agency, the defendant's assertion of mistake of facts that he went into the victim's residence without intention is without merit.

(2) Parts of mental disorder

In full view of the following: (a) the Defendant is deemed to have a drinking state at the time of the instant crime; (b) the background leading up to the commission of the crime; (c) the means and method of the crime; and (d) the mental assessment of the Defendant, which was conducted by the lower court, sent a written mental assessment to the effect that the head of a public medical treatment and custody office, an appraisal agency, was not aware of the judgment or competence pertaining to the use of alcohol; and (c) the amount of drinking on the day of the instant case is not excessive compared to the amount of ordinary level of drinking (e.g., the amount of drinking on the day of the instant case; and (d) the Defendant is deemed to have had no or weak ability

B. Ex officio determination

However, prior to the determination of the defendant's assertion of unfair sentencing, the court below examined ex officio the defendant's assertion of unfair sentencing; the defendant: around August 14, 2005, around 3:04:10, the defendant opened a string door door which was not corrected at the house of the victim non-indicted 1,502 (the name of the third and the building omitted) of Leecheon-si (the age of 51), and intruded into the inside door to find stolen objects; the victim's 3 trillion won was able to prevent the victim from suffering from robbery with the intention of evading arrest; the defendant's 3 trillion won 1; the defendant's 3 trillion won 1; the defendant's 5 trillion won 1; the defendant's 3 trillion won 1; the defendant's 3 trillion won 5 trillion won 4; the defendant's 5 trillion won son was forced to protect the victim's chest 182 days, and the defendant's 3 trillion won 1; and the defendant's 3 defendant's her chest and 1.

However, Article 5(2) of the Act on the Punishment of Sexual Crimes and the Protection of the Victims thereof (hereinafter “the Act”) provides that “A person who commits a crime under Article 334 (Special Robbery) or 342 (limited to an attempted crime under Article 334, but limited to an attempted crime under Article 334) through 299 (Rape) of the Criminal Act shall be punished by death, imprisonment for life or for not less than ten years if he/she commits a crime under Article 297 (Rape and quasi-rape under Article 334) through 299 of the same Act,” and Article 5(2) of the Act provides that “A person who commits a special robbery under Article 298 of the Criminal Act shall be punished by death, imprisonment for life or for not less than ten years,” and the special robbery under Article 298 of the Criminal Act is established when he/she takes the status of a special robbery as a combined crime of robbery and a indecent act by force under the new intention of indecent act by force (see Supreme Court Decision 2003Do472, Oct. 24, 2003).

This is because the crime of robbery or robbery stipulated in Articles 335 and 342 of the Criminal Code does not explicitly stipulate that the crime of robbery or robbery is not a subject of action under Article 5 (2) of the Act, and it is clear that the content of the provision is not clear, and it is not permissible to interpret that the crime of robbery is identical to that of Articles 333 through 334 of the Criminal Code when the thief uses violence or intimidation in order to resist recovery of property, to escape arrest or to destroy a trace of crime (see Articles 333 through 334 of the Criminal Code). However, this is because the crime of robbery and robbery and the crime of special robbery should be divided according to the form of punishment for quasi-Robbery and should be the same as that of Articles 33 through 334 of the Criminal Code, regardless of the difference in the elements of the crime of robbery, and the content of the provision of the punishment should be clear and analogical interpretation should not be permitted.

Therefore, as in the case of this case, the judgment of the court below which applied Article 5 (2) of the Act to the defendant as a quasi-Robbery crime committed by indecent act by compulsion is erroneous in the misapprehension of legal principles as to the interpretation and application of Article 5 (2) of the Act, and since the part and the remainder of the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act

3. Conclusion

Therefore, the judgment of the court below shall be reversed by applying Article 364(2) of the Criminal Procedure Act, and the following judgment shall be rendered after pleading.

The summary of the criminal facts and evidence of the defendant recognized by this court is the same as that of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Articles 337, 342, 335, 334(1), and 333 of the Criminal Act: The point of injury by robbery

Article 298 of the Criminal Act: The point of indecent act by compulsion

1. Commercial concurrence and the selection of a punishment;

Articles 40 and 50 of the Criminal Act (Punishments prescribed for the crime of Inflicting Robbery with Severe Punishment, but Selection of Imprisonment)

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act ( normal consideration, such as the absence of any criminal record by the defendant, the agreement between the victim and the original instance, and the victim's re-submissions the application of the defendant's wife at the trial of the party)

1. Calculation of days of detention;

Article 57 of the Criminal Act

Of the instant charges, violation of the Act on the Punishment of Sexual Crimes and Protection of Victims (Special Robbery, Rape, etc.)

The charge constitutes a case where the crime under the former part of Article 325 of the Criminal Procedure Act is not committed on the grounds as seen in Article 2-2(b) above. However, the charges of violating the Act on the Punishment of Sexual Crimes and Protection of Victims, etc. (Special Robbery, Rape, etc.) include the charges of indecent act by force, so long as the charges of indecent act by force are found guilty, the sentence of

Judges Lee Jae-hwan (Presiding Judge) Kim Jong-ho